Court of Appeal
Criminal Appeal No. 1 of 1984
11th May, 1984
SIR JOHN SUMMERFIELD, P.
SIR ALBERT L. STAINE, J.A.
KENNETH ST. L. HENRY, J.A.

Criminal Law - Homicide Defence of defence of Robbery - Availability of defence if Appellant genuinety and in good faith but mistakenly believed he was being robbed - What constitute robbery - Effect of the use of excessive force in the Defence of self-defence - Application of the proviso since no miscarriage of justice - Mitigating circumstance which may reduce the sentence for manslaughter.

J U D G M E N T

The Appellant was charged with the murder of Joseph Antonio on 21 August 1983 in Belize City. He was acquitted of murder but found guilty of manslaughter and was sentenced to four years imprisonment with hard labour.

The incident occurred at about 8:30 a.m. Antonio approached the Appellant on Freetown Road and said: "Give me some money". The Appellant replied "You must go tell de man de". Antonio then said "Make sure when you meet me again that you got some money for me." Antonio then moved off. When he had gone about five yards the Appellant said something which resulted in Antonio saying "Gimme some money then." Antonio then pushed his hand in the Appellant's side trouser pocket. The hand did not get far in because the Appellant stopped it and pushed the hand away. They then both stood facing each other as if about to exchange blows. The Appellant reached into his back pocket and brought out a knife. An onlooker went up to them and said that it made no sense to go through with this. The Appellant then pushed the knife at Antonio and when Antonio then turned round blood was seen on his shirt. The Appellant had inflicted a mortal wound in the abdomen of Antonio from which he died shortly afterwards.

That was the prosecution case. There was also evidence that the Appellant and Antonio were friends.

In a statement made to the Police less than an hour after the incident the Appellant gave this account of it:

"As I started to walk down Freetown Road one knows to me as "Twilde" whom I have seen coming out of Douglas Jones Street into Freetown Road approached me and asked me if I had money. I told him that I did not have and asked him why. Twidle then said that he wanted a five dollars, I shook my head in a negative manner and Twilde walked away in the direction from where he had come for about five paces and walked away. Something told me to look behind me and I saw Twilde coming back in my direction, Twidle came right in front of me from my left side and saying that "he wants some money", pushed his hands straight into my left front trousers pocket. He, Twilde, did it with his right hand. I had about seven one dollar bills and my lottery that I just bought in my pocket and Twilde took it our and put it straight into his right front pants pocket. Having done this he came up with his right hand first made up as if to punch me. I saw this and hauled out a knife that I had in my left back pocket with my left hand in one motion and pushed it towards Twilde and caught him right between the opened shirt on the chest."

In an unsworn statement from the dock he said:

"I accept that I gave the Police a statement that is true confessing that the knife that I used was to defend myself from this felloe who was robbing me, I am sorry I did that. That is all."

Clearly his defence was that he was defending himself from robbery at the time.

The learned trial Judge fully recognised this. In the course of full and adequate directions on all relevant aspects, including directions on the defence against murder, manslaughter, dangerous or grievous harm, he gave his directions in relation to defence against robbery in these terms:

"If your are satisfied and feel sure he did not feel fear of death or dangerous or grievous harm, you must consider whether he was defending himself against robbery. Robbery is defined by Section 153 of the Criminal Code as follows:

"A person is guilty of robbery of he steals and immediately before or at the time of doing so and in order to do so he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force". To steal is to take a thing belonging to another and to do so without at least believing he had a right to it.

The evidence in this case is that the deceased demanded the money and the accused said "You must go tell de man de". Thereupon the deceased says "Mek sure when your meet me again that you have some money for me". Does this sound like a person about to take some money he had no right to or a person demanding something he believed he had a right to? Does this sound like the prelude to a robbery or does it sound like a disagreement between acquaintances or friends over money? That is why the prosecution sought to prove that they were friends and the defence sought to disapprove it. You have the evidence of Diego that they were friends, the accused and the deceased. If you accept that evidence there were friends or at least acquaintances who moved about together some of the time. When, therefore, having demanded money and been told to tell "de man de" Antonio said "Mek sure you have some money for me" and turned away, do you think he was asking for something he believed he had to get or putting Vernon in fear of force? And when Vernon said something that made Antonio come back and put his hand in Vernon's pocket was he trying to rob Vernon by the use of force or was he trying to take what he seemed to believe he has a right to take? That is a matter for you to decide as a question of fact. If you have a reasonable doubt on this aspect of the evidence then you must find the accused not guilty of any offence. If, however, you are satisfied and feel sure that this was not an attempted robbery but a dispute between friends or acquaintances then if you are also satisfied and feel sure that the accused could not have feared death or dangerous or grievous harm, then you will conclude that the harm caused to Antonio was caused without justification and you will go on to decide whether the harm was caused with a murderous intention."

That is clear enough and an accurate explanation of the offence of robbery, with particular reference to the element of dishonesty in the ingredient of stealing, having regard to section 146 (1) (a) of the Criminal Code. The complaint, as it developed in argument, was that this direction would leave the jury with the impression that, if the offence of robbery was not committed or attempted because, in his mind, the assailant believed that he had in law the right to deprive the victim of the article being appropriated, the victim cannot avail himself of the defence of defence against robbery however genuinely the victim believed that he was being robbed. That, of course, is not the position as section 27(1) of the Code would operate in his favour. Section 27(1) reads:

"A person shall not be punished for an act which by reason of ignorance or mistake of fact in good faith he believes to be lawful."

As the argument developed it was emphasized that what was operating in the victim's mind (here, the appellant) was the important factor. Even if, technically, the offence of robbery was not being committed did the appellant mistakenly, in good faith, believe that he was being robbed and that he could lawfully defend himself against the robbery?

There can be no doubt that a further direction on these lines, explaining the operation of section 27(1) would have been desirable and would have rounded off an otherwise unexceptional direction.

The question for this court is whether the absence of such a fuller direction is a fatal flaw in an otherwise sound summing up.

It is significant that the substituted ground of appeal lodged at the commencement of the hearing of the appeal was that the learned Judge had misdirected the jury with regard to the defence of defence against robbery under section 35(4)(e) of the Criminal Code. When it became apparent that the direction was accurate in the light of section 146(1)(a) the complaint now relied on development from exchange between Bench and Bar. It nevertheless is a point which must be fully considered to determine whether there was any miscarriage of justice.

In reality the point turns on a fairly sophisticated analysis of the relevant passages of the summing up, imputing to the whole passage a meaning which does not readily strike the listener or reader until there has been that penetrating analysis. Indeed, that imputed meaning could not have been obvious to learned Counsel after examining the record initially as otherwise he would have framed his substituted ground of appeal accordingly. Likewise, the meaning which can be extracted from the passage was not apparent to the Bench until there had been the exchange with learned Counsel.

In the circumstances, could the jury have been misled or been confused by this passage? Read in the ordinary way it is clearly an explanation of the ingredients of the offence of robbery with questions posed, in relation to the evidence, as to whether in reality it was a prelude to a robbery or a disagreement between friends over money. That is how it must have struck the jury. One must keep a proper perspective in these matters and not allow one's common sense to fly out of the window.

On the other side of the coin, the learned Judge gave no direction in relation to the use of excessive force in self defence. As he left the matter with the jury, if the Appellant was acting in self defence, against grievous harm etc. or robbery, or may have been, then jury should acquit irrespective of the amount of force used to repel the aggressor. There was not direction that the Appellant would be responsible for any significant excess of force over and above that necessary to defend himself. That was a benign approach to this defence which could have operated very much to the Appellant's advantage. Had the jury been fully directed on this aspect one would have expected a reasonable jury to reach the verdict it did on the basis of excess use of force in defence against apprehended robbery. It should be remembered that Antonio was unarmed. He merely attempted to put his hand in the Appellant's pocket and accompanied his actions with verbal demands for money. The two were friends. It was hardly a very serious intrusion in all the circumstances.

As it is, on the directions given, it would appear that the jury reached its verdict on the basis of the absence of any intention to kill on the part of the Appellant.

Looking at the case as a whole we are satisfied that there has been no miscarriage of justice. While conceding that the refinement in the summing up adverted to earlier would have been desirable, its omission could not have resulted in a miscarriage of justice in the circumstances of this case, and the proviso may properly be applied.

The appeal against conviction is dismissed.

As to sentence, it would appear that due account was taken of the jury's recommendation of mercy, the Appellant's contrition and his assistance in getting Antonio to the hospital for treatment immediately after the accident. The sentence is substantially less than others involving the spontaneous response of lunging out with a knife with fatal consequences. There are no grounds for intervening.

The appeal against this sentence is dismissed.

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